Ruling in Colorado Bakery Case Sends Message About Discrimination

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The United States Supreme Court ruled on Monday morning in favor of a baker hailing from Colorado who refused to bake a cake for a gay couple. The victory is a shaky one, though, as it deflected from the broader issue.

Reuters reported:

“The justices, in a 7-2 decision, said the Colorado Civil Rights Commission showed an impermissible hostility toward religion when it found that baker Jack Phillips violated the state’s anti-discrimination law by rebuffing gay couple David Mullins and Charlie Craig in 2012. The state law bars businesses from refusing service based on race, sex, marital status or sexual orientation.”

The majority ruling cited a specific comment a former commissioner, Diann Rice, made. Rice said that “freedom of religion, and religion, has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust.”

But, “Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth,” Justice Anthony Kennedy wrote for the majority.

“Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.”

Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented. In the dissent, Justice Ginsburg wrote that she agreed with the parts of the majority ruling that favored gay rights.

But uncertainties remain, according to JoLynn Markison, a partner at the international law firm Dorsey & Whitney in its labor and employment practice.

“The Supreme Court failed to consider whether the Commissioner’s ‘inappropriate’ statement about religion impacted the outcome of Commission’s decision,” Markison explained. “Finding instead that the Commissioner’s statement evinced ‘hostility’ towards religion, the Supreme Court invalidated the Commission’s decision without analyzing whether the decision was correct. In so doing, the Supreme Court sidestepped the ultimate question in this case — whether freedom of religion can be used to discriminate against gay people in places of public accommodation.”

“We can expect to see many more instances of public businesses refusing to provide services to gay people in the name of religious freedom. The Supreme Court may have dodged the issue for now, but it will not be able to avoid it forever,” Markison added.

Justice Kennedy made it clear in his ruling that the issue will indeed come up again — and the Court will keep in mind religious rights as well as those of the LGBT community.

“The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market,” he wrote.